Partridge v. Wooton

• Decision Date: 10 December 1910
• Citation: 137 S.W. 412
• Court: Texas Court of Appeals
• Parties: PARTRIDGE v. WOOTON.

137 S.W. 412

PARTRIDGE v. WOOTON.

Court of Civil Appeals of Texas. Ft. Worth.

December 10, 1910.

Appeal from Haskell County Court; Joe Irby, Judge.

Action by J. E. Wooton against James Partridge. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

See, also, 137 S. W. 412.

Helton & Murchison, for appellant. H. G. McConnell and Gordon B. McGuire, for appellee.

CONNER, C. J.

On the 13th day of January, 1904, appellee, J. E. Wooton, instituted this suit in a justice court of Haskell county, upon a note executed by appellant, James Partridge, dated April 30, 1903, for the sum of $100, together with interest at the rate of 10 per cent. per annum, and attorney's fees of 10 per cent. of the amount of the note. A trial in the justice court resulted in a judgment for the plaintiff in the suit, and the defendant, James Partridge, duly prosecuted an appeal to the county court. In the county court the defendant filed formal amended answer in writing in which, by special plea duly verified, he alleged that the note had been executed by him for the purchase money of a certain jack, bought, as the plaintiff well knew, for the purpose of breeding mules; that the plaintiff had represented the jack to be a "good foal-getter"; that he had relied upon the representations made, and was induced thereby to purchase the jack and execute the note, that "such representation was false, and said jack was and is utterly worthless and of no value to the defendant, James Partridge." He therefore alleged that the consideration for the note had failed, and he prayed that the note be canceled, and for general relief. Appellant further presented in the county court a special plea in the nature of a cross-action for damages in the sum of $200 because of the false representations alleged.

A trial in the county court was had on the 20th day of January, 1908, which resulted in a verdict and judgment for appellee, and appellant prosecuted an appeal to this court, which, on December 19, 1908, was dismissed for want of a final judgment; it not appearing that the judgment in any manner disposed of appellant's cross-plea for damages. See conclusions in the case of James Partridge v. J. E. Wooton (No. 5,876) 137 S. W. 412. On the 15th day of October, 1909, appellee, Wooton, filed in the county court a petition for a nunc pro tunc order, showing that appellant's cross-bill had been disposed of by the court's ruling upon a general demurrer to appellant's said cross-plea. Upon a hearing of the motion on October 20, 1909, the county court granted it, and thereby, in effect, rendered the original judgment of the county court final. To this proceeding appellant urged a number of objections, and has again appealed from the original judgment.

Several preliminary questions have been presented on this appeal, of which we will first dispose.

Appellant first questions the admissibility of the evidence upon which the court acted in entering the nunc pro tunc order. This evidence consisted of formal bills of exception, duly made and filed at the time, to the original action of the court in sustaining appellee's demurrer to appellant's cross-action for damages. While some authorities, including some of the earlier decisions of our own courts, seem to support appellant's contention, we think it now settled in this state that in the correction of a judgment, as authorized by the Revised Statutes of 1895, art. 1356, the court may act upon his own recollection, or upon such legal evidence, oral or otherwise, as to the court may seem proper. See Ft. W. & D. C. Ry. Co. v. Roberts, 98 Tex. 42, 81 S. W. 25. See, also, Freeman on Judgments, § 53. No error, therefore, was committed in the particular mentioned.

Appellee, in turn, insists that the appeal should be dismissed because not prosecuted within the proper time; his insistence being that the time for an appeal to this court should be computed from the 20th of January, 1908, the date of the original judgment, instead of from the date of the entry of the nunc pro tunc order. If from the former date, appellant has lost his right of appeal; if from the latter date, it is conceded that the appeal now before us has been properly prosecuted. To aid us in the solution of the question thus presented, no authorities of our own have been presented, nor, indeed, have we been cited to or able to find anything directly in point.

In speaking of the entry of judgments nunc pro tunc, Mr. Freeman, in his work on Judgments (4th Ed.) vol. 1, § 67, among other things, says that: "For most purposes, the effect of the judgment is not different from what it would be, had it not been entered nunc pro tunc, because, until its rendition, no proceedings could be taken for its enforcement. Therefore the statute of limitations does not commence to run against an action upon it, until the date of its actual rendition"—citing Borer v. Chapman, 119 U. S. 587, 7 Sup. Ct. 342, 30 L. Ed. 532, which sustains the text. In the case cited, among other things relating to the nunc pro tunc entry there considered, the court said: "The date of the entry is by a fiction of law made and considered to be the true date of the judgment for one purpose only, and that is to bind the defendant by the obligation of the judgment entered as of a date when he was in full life; but the right of the complainant in this appeal to...